Professional Development: Giving The Green Light On Legal Counsel

By Gina Vitiello, LEED APPublished in the February 2010 issue of Today’s Facility Manager

In today’s age of rising energy costs and reducing carbon footprints, the construction of new buildings and the facility management (FM) of existing structures now require the implementation of energy efficient operations and sustainable building strategies. In fact, the federal government is even promoting green building practices by offering tax incentives and programs such as Energy Star. State and local governments also support it by including green building requirements in contract language for public construction programs and local building codes.

Business owners and commercial real estate developers are recognizing that green building practices can reduce energy costs and operating expenses while simultaneously enhancing a facility’s value. Given these benefits, companies are proudly publicizing their buildings as LEED (Leadership in Energy and Environmental Design) certified.

Launched in 2001, the LEED accreditation program enables building professionals to gain the knowledge and skills to steward the LEED certification process successfully; this encompasses every aspect of building construction, design, and maintenance. LEED Accredited Professionals (APs) demonstrate a thorough understanding of green building practices and principles along with the complex LEED rating system. It is common for project teams to be comprised of several LEED APs—from design professionals to specialty contractors.

Lawyers who represent clients in the real estate, leasing, and construction industries are making it a priority to learn about green building in order to understand the issues that develop as these practices continue to grow and evolve. LEED AP attorneys can provide the legal expertise needed to craft solid contracts and agreements built on green strategies that work from start to finish.

LEED AP attorneys can assist from the planning stage, when critical legal strategies can be used to take advantage of tax incentives or other cost saving tactics. This follows through to the contract stage, when the attorney can help allocate the risk of cost saving performance guarantees, obtain LEED certification, and ensure prevention of de-certification.

Moreover, as the green building industry continues to develop, new legal issues arise that have not been encountered in the past. Without previous laws and cases setting a precedent, many green building legal issues are novel and must be resolved without looking to previous legal examples.

Because green building practices are flexible, LEED continues to evolve, taking advantage of new technologies and advancements in building science while prioritizing energy efficiency and CO2 emissions reductions. As LEED guidelines progress, LEED APs must continue to educate themselves in order to remain current on sustainability practices that will assist clients in achieving their environmental goals.

LEED concepts and requirements are very technical and comprehensive. Learning the LEED rating system, underlying principles, individual point criteria, and the certification process is a substantial undertaking. So while the designated LEED AP is typically a member of the design or construction team, there are no barriers that prevent project lawyers from being a designated individual. Regardless of the recipient, this can contribute one point toward overall LEED certification for the construction team.

Many clients are interested in green building and are looking for opportunities to use LEED certification to help add value to their properties or revenue stream. However, fms are not always aware that a LEED AP lawyer can bring additional opportunities and value to green building projects. For instance, a lawyer who understands that the energy saving calculations necessary to obtain LEED points may also help the project qualify for federal or state tax credits. This can be a valuable asset when seeking LEED certification for a project.

Successful green building requires concentrated coordination of several disciplines—including those that fall under the legal umbrella. Many project teams do not deem it necessary to address potential legal issues in their early coordination efforts—when they might be most easily and affordably addressed. Working with a LEED AP attorney can provide a host of benefits throughout each phase of a construction project. And for attorneys wishing to obtain their LEED accreditation, other than the amount of time and hard work required, the benefits outweigh any negatives by far.

Vitiello, a partner in the Construction and Commercial Litigation practice with national law firm Chamberlain Hrdlicka, is one of the first 12 attorneys in the state of Georgia to obtain LEED Accreditation from the USGBC. She represents clients in contract negotiation matters, dispute avoidance/resolution, and litigation.

To discuss some of your experiences in real time, come to FacilityBlog; to comment on this article, send an e-mail to tfm@groupc.com; for past Professional Development columns, visit this link.

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